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| given up to and including |
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| New Amendments handed in are marked thus  |
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| Amendments which will comply with the required notice period at their next appearance
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| Amendments tabled since the last publication: 1 to 15 and NC1 |
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| Mental Capacity (Amendment) Bill [Lords]
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| | This document includes all amendments tabled to date and includes any |
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| | withdrawn amendments at the end. The amendments have been arranged in the |
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| | order in which they relate to the Bill. |
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| | That, subject to the discretion of the Chair, any written evidence received by the |
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| | Committee shall be reported to the House for publication. |
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| Clause 5, page 4, line 25, leave out subsection (9) |
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| | Member’s explanatory statement
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| | This amendment removes the privilege amendment inserted by the Lords. |
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| To move the following Clause— |
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| | | “Meaning of deprivation of liberty |
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| | (1) | After section 4 of the Mental Capacity Act 2005 insert— |
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| | “4ZA | Meaning of deprivation of liberty |
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| | (1) | In this Act, references to deprivation of a person’s liberty have the same |
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| | meaning as in Article 5(1) of the Human Rights Convention and, |
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| | accordingly, a person is not deprived of liberty in any of the |
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| | circumstances described in subsections (2) to (4). |
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| | (2) | A person is not deprived of liberty in a particular place if the person is |
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| | free to leave that place permanently. |
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| | (3) | A person is not deprived of liberty in a particular place if— |
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| | (a) | the person is not subject to continuous supervision, and |
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| | (b) | the person is free to leave the place temporarily (even if subject |
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| | to supervision while outside that place). |
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| | (4) | A person is not deprived of liberty if— |
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| | (a) | the arrangements alleged to give rise to the deprivation of liberty |
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| | are put in place in order to give medical treatment for a physical |
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| | (b) | the same (or materially the same) arrangements would be put in |
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| | place for any person receiving that treatment. |
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| | (5) | A person is free to leave a particular place for the purposes of subsections |
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| | (2) and (3) even if the person is unable to leave that place provided that |
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| | if the person expressed a wish to leave the person would be enabled to do |
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| | (2) | In section 64(5) of that Act (interpretation) for the words from “same” to the end |
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| | substitute “meaning given by section 4ZA.”” |
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| | Member’s explanatory statement
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| | This New Clause provides the meaning of “deprivation of liberty” for the purposes of the Mental |
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| Schedule 1, page 5, line 19, leave out “if a person objects to arrangements” and |
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| insert “in certain cases” |
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| | Member’s explanatory statement
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| | This amendment is consequential on Amendment 9. |
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| Schedule 1, page 8, line 19, leave out from “mainly” to “that” in line 21 and insert |
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| | (i) | the provision of NHS continuing healthcare under |
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| | arrangements made by a clinical commissioning group, or |
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| | (ii) | in Wales, the provision of an equivalent to NHS continuing |
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| | healthcare under arrangements made by a Local Health |
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| | Member’s explanatory statement
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| | “NHS continuing healthcare” is defined, for England, by paragraph 8 of new Schedule AA1. This |
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| | amendment provides that in the case of arrangements carried out through the equivalent of NHS |
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| | continuing healthcare, in Wales, the responsible body is the Local Heath Board making the |
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| Schedule 1, page 11, line 19, leave out from beginning to end of line 7 on page 12 |
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| | “13(1) | As soon as practicable after authorising arrangements, the responsible body |
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| | must ensure that a copy of the authorisation record is given to— |
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| | (a) | the cared-for person, |
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| | (b) | any independent mental capacity advocate appointed under paragraph |
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| | 39 to represent and support the cared-for person, |
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| | (c) | any person within paragraph 39(5) in respect of the cared-for person |
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| | (the “appropriate person”), and |
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| | (d) | any independent mental capacity advocate appointed under paragraph |
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| | 40 to support the appropriate person. |
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| | (2) | As soon as practicable after authorising arrangements, the responsible body |
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| | must take such steps as are practicable to ensure that the cared-for person and |
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| | any other person listed in sub-paragraph (1) understands— |
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| | (a) | the effect of the authorisation, |
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| | (b) | the right to make an application to the court to exercise its jurisdiction |
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| | (c) | the programme of regular reviews specified by the responsible body in |
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| | accordance with paragraph 35(2), |
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| | (d) | the right to request a review under paragraph 35(3)(b), |
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| | (e) | the circumstances in which a referral will be made to an Approved |
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| | Mental Capacity Professional under paragraph 35(4), |
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| | (f) | the circumstances in which an independent mental capacity advocate |
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| | should be appointed under paragraph 39, and |
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| | (g) | the effect of there being an appropriate person in relation to the cared- |
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| | Member’s explanatory statement
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| | This amendment substitutes a new paragraph 13 of the new Schedule AA1 to require that, as soon |
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| | as practicable after arrangements are authorised, the responsible body must provide to the cared- |
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| | for person and any other person listed in paragraph 13(1) a copy of the authorisation record and |
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| | take steps to ensure that those people understand the matters described in paragraph 13(2). |
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| Schedule 1, page 14, line 6, leave out “prescribed connection” and insert |
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| “connection, of a kind prescribed by regulations,” |
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| | Member’s explanatory statement
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| | This amendment is to make it clear that a regulation making power is being conferred by |
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| | paragraph 18(3) of the new Schedule AA1. |
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| Schedule 1, page 15, line 4, leave out “prescribed connection” and insert |
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| “connection, of a kind prescribed by regulations,” |
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| | Member’s explanatory statement
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| | This amendment is to make it clear that a regulation making power is being conferred by |
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| | paragraph 19(4) of the new Schedule AA1. |
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| Schedule 1, page 16, line 1, leave out “prescribed connection” and insert |
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| “connection, of a kind prescribed by regulations,” |
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| | Member’s explanatory statement
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| | This amendment is to make it clear that a regulation making power is being conferred by |
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| | paragraph 21(1)(b) of the new Schedule AA1. |
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| Schedule 1, page 16, line 8, leave out “or” |
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| | Member’s explanatory statement
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| | This amendment is consequential on Amendment 9. |
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| Schedule 1, page 16, line 12, at end insert— |
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| | “(c) | the arrangements provide for the cared-for person to receive care or |
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| | treatment mainly in an independent hospital, or |
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| | (d) | the case is referred by the responsible body to an Approved Mental |
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| | Capacity Professional and that person accepts the referral.” |
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| | Member’s explanatory statement
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| | This provides for two additional situations where a pre-authorisation review must be carried out |
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| | by an Approved Mental Capacity Professional. |
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| Schedule 1, page 16, line 31, leave out “(whether or not paragraph 21(2) applies)” |
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| | Member’s explanatory statement
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| | This amendment is consequential on Amendment 9. |
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| Schedule 1, page 24, line 3, at end insert “in a hospital” |
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| | Member’s explanatory statement
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| | This is to provide that only arrangements to enable medical treatment for mental disorder in a |
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| | hospital (as opposed to medical treatment for mental disorder in any other setting) are excluded |
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| | from being authorised under the new Schedule AA1. |
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| Schedule 1, page 24, line 10, at end insert “in a hospital” |
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| | Member’s explanatory statement
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| | This is to provide that only arrangements to enable medical treatment for mental disorder in a |
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| | hospital (as opposed to medical treatment for mental disorder in any other setting) are excluded |
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| | from being authorised under the new Schedule AA1. |
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| Schedule 1, page 27, line 16, at end insert— |
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| | “(g) | anything which has the same effect as something within any of |
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| | paragraphs (a) to (f), under another England and Wales enactment.” |
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| | Member’s explanatory statement
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| | If arrangements conflict with requirements, conditions or directions imposed or given under |
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| | certain provisions of the Mental Heath Act 1983 those arrangements cannot be authorised under |
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| | the new Schedule AA1 of the Mental Capacity Act 2005. This amendment provides that |
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| | arrangements which conflict with requirements, conditions or directions arising from an England |
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| | and Wales enactment having the same effect as the provisions of the Mental Health Act listed in |
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| | paragraph 54 also cannot be authorised under the new Schedule AA1. |
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| Schedule 2, page 28, line 22, at end insert— |
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| | “3A(1) | Section 36 (functions of independent mental capacity advocates) is amended |
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| | (2) | In subsection (2)(a) leave out “(“P”) so that P” and insert “or support so that |
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| | (3) | In subsection (2)(c) leave out “P’s wishes and feelings” and insert “the wishes |
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| | and feelings of the person the advocate has been instructed to represent (“P”)”. |
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| | (4) | After subsection (2)(d) insert— |
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| | “(da) | in the case of an advocate instructed to support an appropriate |
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| | person where paragraph 40 of Schedule AA1 applies, |
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| | supporting that person to ascertain— |
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| | (i) | what the wishes and feelings of the cared-for person |
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| | who that appropriate person represents and supports |
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| | would be likely to be and the beliefs and values that |
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| | would be likely to influence the cared-for person; |
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| | (ii) | what alternative courses of action are available in |
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| | relation to the cared-for person who that appropriate |
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| | person represents and supports;”. |
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| | 3B (1) | Section 38 (provision of accommodation by NHS body) is amended as |
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| | (2) | For subsection (2A) substitute— |
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| | “(2A) | And this section does not apply if— |
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| | (a) | an independent mental capacity advocate is appointed under |
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| | paragraph 39 of Schedule AA1 to represent and support P, and |
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| | (b) | the arrangements which are authorised or proposed under |
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| | Schedule AA1 in respect of P include arrangements for P to |
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| | be accommodated in the hospital or care home referred to in |
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| | (3) | In subsection (3), in the opening words, after “arrangements” insert |
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| | “mentioned in subsection (1)”. |
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| | (4) | Omit subsection (10). |
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| | 3C (1) | Section 39 (provision of accommodation by local authority) is amended as |
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| | (2) | For subsection (3A) substitute— |
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| | “(3A) | And this section does not apply if— |
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| | (a) | an independent mental capacity advocate is appointed under |
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| | paragraph 39 of Schedule AA1 to represent and support P, and |
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| | (b) | the arrangements which are authorised or proposed under |
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| | Schedule AA1 in respect of P include arrangements for P to |
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| | be accommodated in the residential accommodation referred |
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| | (3) | In subsection (4), in the opening words, after “arrangements” insert |
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| | “mentioned in subsection (1)”. |
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| | (4) | Omit subsection (7).” |
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| | Member’s explanatory statement
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| | This amends the regulation making power in section 36 of the Mental Capacity Act 2005 to ensure |
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| | that equivalent provision can be made for advocates who support a cared-for person’s |
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| | “appropriate person” as for other advocates. It also makes other changes to that Act |
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| | consequential on amendments made by Schedules 1 and 2 to the Bill. |
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| Schedule 2, page 28, line 23, at end insert— |
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| | “4A | In section 40 (exceptions)— |
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| | (a) | in subsection (1), for “, 39(4) or (5), 39A(3), 39C(3) or 39D(2)” |
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| | substitute “or 39(4) or (5)”; |
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| | (b) | omit subsection (2).” |
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| | Member’s explanatory statement
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| | This amendment is consequential on the amendments made to the Mental Capacity Act 2005 by |
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| | Schedules 1 and 2 to the Bill. |
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| | Order of the House [18 December 2018] |
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| | That the following provisions shall apply to the Mental Capacity (Amendment) Bill |
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| | 1. | The Bill shall be committed to a Public Bill Committee. |
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| | Proceedings in Public Bill Committee |
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| | 2. | Proceedings in the Public Bill Committee shall (so far as not previously |
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| | concluded) be brought to a conclusion on Thursday 24 January 2019. |
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| | 3. | The Public Bill Committee shall have leave to sit twice on the first day on |
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| | Proceedings on Consideration and up to and including Third Reading |
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| | 4. | Proceedings on Consideration and any proceedings in legislative grand |
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| | committee shall (so far as not previously concluded) be brought to a |
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| | conclusion one hour before the moment of interruption on the day on which |
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| | proceedings on Consideration are commenced. |
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| | 5. | Proceedings on Third Reading shall (so far as not previously concluded) be |
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| | brought to a conclusion at the moment of interruption on that day. |
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| | 6. | Standing Order No. 83B (Programming committees) shall not apply to |
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| | proceedings on consideration and Third Reading. |
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